Should cellphone searches require a warrant?

Brima Wurie was sentenced in 2011 to 262 months in federal prison for his conviction on drug and firearm offenses. We have no quarrel with the Massachusetts man’s sentence, as he had a long history of violent crime. What troubles us is the means by which police obtained damning evidence against him.

After arresting Wurie, on suspicion he was selling crack cocaine out of his car, police seized his cellphone and perused his phone log. That enabled law enforcement to find the place where he resided, and where he stashed additional drugs.

All of that would have been acceptable, from our civil-libertarian perspective, had police first secured a warrant before inspecting the suspect’s cellphone.

They didn’t, and we believe the resulting warrantless search violated the Fourth Amendment’s protection of the “right of the people to be secure in their persons, houses, papers” and, in this particular case, “effects” against unreasonable, unwarranted searches and seizures.

Advertisement

Indeed, that was the split decision in May of a three-judge panel of the 1st U.S. Circuit Court of Appeals, which vacated two of the three counts on which Wurie was convicted and remanded the third count for resentencing.

If the Supreme Court decides to hear the case, the justices will have to weigh the 1st Circuit’s 2-to-1 ruling in U.S. v. Brima Wurie against conflicting rulings by several other federal appellate courts in cases concerning similar Fourth Amendment issues.

The Obama administration last week asked the high court to set aside the 1st Circuit decision and to rule that the Fourth Amendment, in fact, allows warrantless cellphone searches.

In the petition, U.S. Solicitor General Donald Verrilli maintained, “It is settled law that a custodial arrest based on probable cause justifies a full search of an arrestee and any items found on him.” Therefore, he argued, no exception should be made for cellphones.

But a cellphone no longer is just a phone. Most are computers that can store vast amounts of personal information – voicemails, text messages, emails, call logs, images, browser history – some of which may be germaine to a criminal investigation, and some of which absolutely may not.

Even the dissenting judge in the 1st Circuit’s decision acknowledged “concerns about the privacy interests at stake in cellphone searches.” That’s why his two colleagues on the panel crafted what they described as a “bright-line rule” that “the warrantless search of data on a cellphone seized from an arrestee’s person” is unauthorized under any circumstance.

Yes, we understand there are occasions when cellphone information is essential in investigating crimes. And we have no particular empathy for longtime violent offenders like Wurie.

But if police are able to trample upon the Fourth Amendment rights of arrestees like Wurie, they can just as easily trample upon the same rights of arrestees far-less nefarious – including those never formally charged with a crime.

That’s why we strongly support the appellate court ruling in U.S. v. Brima Wurie and hope the Supreme Court does as well.